Found at the Constitutional Court of the Czech Republic No. 214 / 1994 Coll.
The finding of the Constitutional Court of the Czech Republic of 12 October 1994 on the application for annulment of § 55 paragraph 2, the provision expressed in § 74 paragraph 1 in the words "(§ 68, 69, 72, 73, 73a), with the exception of the decision on its extension (§ 71 paragraph 2, 5)," and § 209 of Act No. 141 / 1961 Coll., on criminal proceedings (criminal order), as amended
Valid
The Constitutional Tribunal found
Text versions:
18.11.1994
214
FIND
Constitutional Court of the Czech Republic
On behalf of the Czech Republic
The Constitutional Court of the Czech Republic decided in plenary on 12 October 1994 on the proposal of a group of Members to repeal the provisions of Paragraph 55 (2), the provision expressed in § 74 (1) in the words "(§ 68, 69, 72, 73, 73a), with the exception of the decision on its extension (§ 71 (2), (5)," and § 209 of Act No. 141 / 1961 Coll., on criminal proceedings (criminal order), as amended,
as follows:
On 1 March 1995, the provisions of § 55 (2), § 209 and the provisions of § 74 (1) are deleted "(§ 68, 69, 72, 73, 73a), with the exception of the decision on its extension (§ 71 (2), (5))," Act No. 141 / 1961 Coll., Act No. 29 / 1978 Coll., Act No. 43 / 1980 Coll., Act No. 159 / 1989 Coll., Act No. 178 / 1990 Coll., Act No. 303 / 1990 Coll., Act No. 558 / 1991 Coll., Act No. 25 / 1993 Coll., Act No. 115 / 1993 Coll.
Reasons
On 23 February 1994, the Constitutional Court of the Czech Republic received a proposal from a group of 44 Members of the Chamber of Deputies of the Czech Parliament to initiate proceedings for the annulment of the provisions of § 55 paragraph 2, part of the provision of § 74 paragraph 1, expressed in words "with the exception of the decision on its extension (§ 71 paragraph 2, 5) 'and provisions of § 209 of the Code, as amended by Act No. 292 / 1993 Coll.
Pursuant to § 42 (3) and § 69 of Act No. 182 / 1993 Coll., on the Constitutional Court, the Constitutional Court of the Czech Republic sent the motion in question to the Chamber of Deputies for observations. The President of the Chamber of Deputies, Dr Milan Uhde, confirmed the position of the Chamber of Deputies, expressed by its vote on the bill, and justified the seriousness of the amendments adopted by the Criminal Code. In its observations, the President of the Chamber of Deputies of the Parliament of the Czech Republic also confirmed, in accordance with the requirements contained in the provision of § 68 paragraph 2 of Act No. 182 / 1993 Coll., that Law No 292 / 1993 Coll. was approved by the necessary majority of Members of the Chamber of Deputies on 10 November 1993, signed by the relevant constitutional authorities and duly declared.
According to Article 42 (2) of Act No. 182 / 1993 Coll., the Constitutional Court of the Czech Republic requested, as documentary evidence from the Chamber of Deputies, the relevant press and record of the House's hearing of Act No. 292 / 1993 Coll. (Parliament of the Czech Republic, Chamber of Deputies, 1993, first term, press No. 535, shorthand report on the meeting of the Chamber of Deputies, first term, 14th session, 9th to 11th November 1993).
1. In the context of the provisions of Sections 55 (2) and 209 of the Code of Criminal Procedure, as amended by Act No. 292 / 1993 Coll., the appellants object to their opposition to Article 38 (2) of the Charter of Fundamental Rights, Article 14 (3) (e) of the International Covenant on Civil and Political Rights and, finally, Article 6 (3) (d) of the Convention on the Protection of Human Rights and Fundamental Freedoms. In the view of the appellants, the provisions cited in the Code of Criminal Procedure are contrary to those laid down in the Charter of Fundamental Rights and Freedoms and International Treaties pursuant to Article 10 of the Constitution of the Czech Republic, because "an anonymous hearing of a witness precludes the execution of evidence in the face of a witness, unless his testimony in serious circumstances disagrees with the testimony of the witness and the contradiction cannot be clarified otherwise.... The exclusion of this means of proof shall limit the finding of the facts and the detailed clarification of the circumstances, both to the benefit and to the detriment of the defendant (pursuant to the amended Paragraph 2 (5) of the Criminal Code). 'In support of their basic argument, the appellants further point to the indeterminity of the distinction between the admissibility of anonymous evidence expressed by the proverb" manifestly' and, therefore, the possible misconduct of the contested provisions of the criminal order. In the context of the contested dispute with the Convention for the Protection of Human Rights and Fundamental Freedoms, the appellants also argue the case-law of the European Court of Human Rights.
The President of the Chamber of Deputies of the Parliament of the Czech Republic states in his observations on the proposal to justify the contested provisions of the Code of Criminal Procedure: "According to the explanatory memorandum, the proposed amendments to the Code of Criminal Procedure are intended, among other things, to provide greater protection for witnesses who have given evidence of their testimony or their determination to testify to verbal and violent attacks. In line with the prevailing tendencies also in the European legal systems, there is a strengthening of the consistency of proceedings in the taking of evidence and greater consideration is given to the principle of equality between the parties to the trial.... It follows from the above that the legislation adopted expresses an attempt to reconcile the rights and positions of the witness and the defendant on the one hand. The law assumes that sufficient protection should be given to the witness in the event that he is in real danger of carrying out his legal obligation without, on the other hand, putting the defendant's right of defence at a significant risk."
2. Since the proposal argues that the rules cited in the Code of Criminal Procedure, not only with the Charter of Fundamental Rights and Freedoms but also with international treaties under Article 10 of the Constitution of the Czech Republic, must first of all be pointed out the existing international case law on the problem:
In cases where the appellant was convicted on the basis of the testimony of anonymous witnesses which the defence could not hear [Kostowski v Netherlands (1989), Windisch v Austria (1990)], the European Court of Human Rights has repeatedly noted a breach of Article 6 (3) (d) of the Convention on the Protection of Human Rights and Fundamental Freedoms.
In these cases, there was a condemning judgment at national level on the basis of the testimony of an anonymous informant, which, for a ruling by the court, was no longer possible at oral hearing. The decisions of the European Court of Human Rights thus allow for a dual interpretation: the first is the refusal of anonymous testimony in the form of a possible incriminating evidence for its opposition to the right of defence and the principles of a fair criminal process as expressed in Article 6 of the Convention on the Protection of Human Rights and Fundamental Freedoms; the second is the application of the general principle of mouth and of the public which imposes all the evidence in oral proceedings to enable the accused to exercise his rights under Article 6 (3) (d) of the Convention on the Protection of Human Rights and Fundamental Freedoms.
3. The development of rights and freedoms guaranteeing the integrity of personal freedom was inseparably linked to the development of their procedural guarantees. This development has led to the creation of procedural principles of impartial management (right to due process).
The constitutional framework of procedural rights is contained both in the Charter of Fundamental Rights and in international treaties pursuant to Article 10 of the Constitution of the Czech Republic.
Paragraphs 55 (2) and 209 of the Code of Criminal Procedure, as amended by Act No. 292 / 1993 Coll., introduce the possibility of using anonymous evidence as incriminating evidence in the criminal proceedings.
The purpose of the right to open the case, in conjunction with the right to comment on all the evidence carried out, is to give the defendant, in the criminal proceedings, the opportunity to verify the evidence against him in the face of the public. This verification in the case of testimony contains two components: the first is the examination of the truthfulness of the facts, the second is the possibility to verify the credibility of the witness. Thus, the institution of anonymous witnesses limits the possibility of the defendant to verify the truthfulness of his testimony, because it excludes the possibility of expressing himself to the witness and his credibility. Therefore, it limits his rights of defence, it runs counter to the principle of the conformity of the process, the principle of the equality of participants, because it does not impose the same restriction on the prosecution and is therefore contrary to the principles of the fair process.
In some cases, the constitutional arrangements of fundamental law or freedom expressly empower the legislator to limit fundamental law or freedom under certain conditions or in terms of constitutional objectives. This is not the case with Articles 37 (3) and 38 (2) of the Charter of Fundamental Rights and Freedoms, as well as with Article 14 (3) (e) of the International Covenant on Civil and Political Rights and Article 6 (3) (d) of the Convention on the Protection of Human Rights and Fundamental Freedoms. This means that the quoted provisions of the Constitution of the Czech Republic and of the international treaties pursuant to Article 10 of the Constitution of the Czech Republic do not allow legislators to restrict the fundamental rights and freedoms contained therein.
The restriction of fundamental rights or freedoms, even if their constitutional regulation does not foresee a restriction, may occur in the event of a collision. In such situations, it is necessary to lay down the conditions under which priority is given to one fundamental right or freedom and to which another. In this context, the maximum is that fundamental right or freedom can be restricted only in the interests of another fundamental right or freedom.
From the argument made by the President of the Chamber of Deputies of the Czech Parliament, it can be concluded that he places the right to the inviolability of the witness in contrast to fundamental rights resulting from a fair trial.
When assessing the possibility of restricting the fundamental right or freedom in favour of another fundamental right or freedom, the following conditions may be laid down, with a priority being given to one fundamental right or freedom:
The first condition is to measure each other, the second is to investigate the substance and meaning of the restricted fundamental right or freedom (Article 4 (4) of the Charter of Fundamental Rights and Freedoms).
The interaction between fundamental rights and freedoms lies in the following criteria:
The first is the criterion of suitability, i.e. the answer to the question whether the Institute, restricting a certain fundamental right, allows the objective pursued (protection of another fundamental right) to be achieved. In the present case, the legislature can be held to believe that the anonymous witness institute allows the objective to be achieved, i.e. to safeguard the integrity of its person.
The second criterion of measuring fundamental rights and freedoms is the necessity of comparing a legislative instrument limiting fundamental rights or freedom with other measures to achieve the same objective but not affecting fundamental rights and freedoms. The answer to the criterion of necessity in the present case is not clear: the State, in addition to the legislative structure allowing the anonymity of the witness, may use other means to protect it (e.g. using anonymous statements only as a criminal means of further investigation, providing protection to the witness, etc.).
The third criterion is a comparison of the severity of both in the conflict of standing fundamental rights. In the case under consideration, one is the right to a proper process ensuring the right to personal freedom; the other is the right to personal integrity. These fundamental rights are prima facie equivalent.
Comparing the severity of the conflict of standing fundamental rights (after fulfilling the conditions of suitability and necessity) is about considering empirical, systemic, context and value arguments. The empirical argument can be understood as the actual seriousness of the phenomenon, which is linked to the protection of a certain fundamental right (in the case under consideration there is an increase in threats and intimidation of witnesses by organised crime). A systemic argument implies consideration of the meaning and inclusion of the fundamental right or freedom in the system of fundamental rights and freedoms concerned (the right to due process is part of the general institutional protection of fundamental rights and freedoms in this context). A contextual argument can be understood as a further negative impact on the restriction of one fundamental right as a result of the preference of another (in this case, the possibility of abuse of the Institute of Anonymous Witness in the criminal process). The value argument represents consideration of the positive effects in the conflict of standing fundamental rights due to the accepted hierarchy of values.
A comparison of the gravity of the conflict of standing fundamental rights also involves considering the use of legal institutions minimising the arguments supported by intervention in one of them.
Thus, for example, the argument against the limitation of one fundamental right of abuse of this adjustment can be eliminated by minimising this negative consequence by laying down further procedural conditions for deciding on it.
It can therefore be concluded that, in the case of the conclusion on the merits of the priority one before the other of the two in a collision of standing fundamental rights, the use of all possibilities of minimising intervention in one of them is also a necessary condition for the final decision. This conclusion can also be derived from Article 4 (4) The Charter of Fundamental Rights and Freedoms, in the sense that fundamental rights and freedoms must be investigated not only in the application of the provisions on the limits of fundamental rights and freedoms but also by analogy in the event of restrictions on them as a result of their mutual collision.
In the case under consideration, a number of arguments are made in favour of the Institute of Anonymous Witnesses: in particular the empirical argument (increase in organised crime and related cases of threat to witnesses), systemic one (disruption of the capacity of justice as a result of the threat to witnesses), value (protection of the lives and property of citizens).
In the case of serious interference with the defendant's right of defence and therefore the principles of a fair trial, it was therefore the legislature's duty to seek the possibility of minimising such interference and establishing appropriate instruments. Examples of such instruments may be the procedural mechanisms already mentioned or the provision of an exception to the general principle of free evaluation of evidence by the judge by imposing an obligation on the court to examine in particular, when assessing the testimony of an anonymous witness, whether the court and the parties have been given sufficient opportunity to deal with the credibility of the witness and the evidence of his testimony, etc. These examples illustrate the fact that, in the context of the amendment of the anonymous witness institute, the legislator has scope for adjusting the instruments minimising interference with the right of defence and the rights arising from a fair process. The choice of an instrument minimising interference with fundamental law or freedom is already under the authority of a democratic legislator.
It can therefore be concluded that, in Sections 55 (2) and 209 of the Code of Criminal Procedure, as amended by Act No. 292 / 1993 Coll., the restriction on the right of defence contained does not fulfil the conditions which must be required in the event of a collision of two fundamental rights for the limitation of one of them, in particular the requirement to minimise the intervention and is therefore contrary to Articles 4 (4), 37 (3), 38 (2) of the Charter of Fundamental Rights and Freedoms.
Under the provisions of Paragraph 70 (1) of Act No 182 / 1993 Coll., the law or its individual provisions, for which the Constitutional Court concludes that they are contrary to the Constitutional Law or the International Treaty pursuant to Article 10 of the Constitution of the Czech Republic, shall be repealed on the date determined by the Constitutional Court in its decision. That institute allows the day of the repeal of a certain provision of the law to be moved by the date of the declaration of a finding in the Collection of Laws, thereby giving the legislator space to correct the partial lack of legal regulation. For this reason, the Constitutional Court of the Czech Republic laid down the date of repeal of the provisions of Sections 55 paragraph 2 and 209 of the Code of Criminal Procedure, as amended by Act No. 292 / 1993 Coll., on 1 March 1995, thereby giving the legislator time to amend the Code of Criminal Procedure and to supplement it with the mechanism chosen by it to minimise interference with the defendant's right of defence, while at the same time allowing the criminal trial to remain free from the abrogation of the decision of the Constitutional Court of the Czech Republic without an institution protecting a witness.
1. In the context of the provision of § 74 (1) of the Code of Criminal Procedure, as amended by Act No. 292 / 1993 Coll., the appellants object to its contradiction with Article 38 (2) of the Charter of Fundamental Rights, Article 14 (3) (e) of the International Covenant on Civil and Political Rights and, finally, Article 6 (3) (d) of the Convention on the Protection of Human Rights and Fundamental Freedoms. In the view of the appellants, the provision of the criminal order cited is contrary to those provisions of the Charter of Fundamental Rights and Freedoms and of the International Treaties pursuant to Article 10 of the Constitution of the Czech Republic, since the Charter of Fundamental Rights and Freedoms "does not, in any provision whatsoever, 'in particular in Article 8, guaranteeing personal freedom, nor in Article 41, deleting the restriction of certain fundamental rights and freedoms in the legal field, permit the restriction of the defendant's right to complain against the decision by which the court relieves him of his personal freedom. The successive decisions on the extension of a bond, which means twice or eight times the" strictly necessary "maximum six months, are equivalent to the decisions on taking custody, since even in the decision on the extension of the bond, the court is obliged to examine whether the grounds for the detention remain or have not changed." In this context, the proposal also argues the right to the appropriate legal protection or judicial protection arising from Article 2 (3) (b) of the International Covenant on Civil and Political Rights and Article 5 (4) of the Convention on the Protection of Human Rights and Fundamental Freedoms.
The President of the Chamber of Deputies of the Parliament of the Czech Republic states in his observations on the proposal for the annulment of Section 74 (1) of the Code of Criminal Procedure, as amended by Act No. 292 / 1993 Coll., to justify the contested provision: "As regards Section 74 (1), the explanatory report states that it is not a new provision, but only a regulation which removes the remaining interpretative doubts."
2. Paragraph 74 (1) of the Penal Code before the amendment was worded as follows: "A complaint against a decision on detention is admissible." Its interpretation in relation to the decision on the extension of the binding was submitted by the Supreme Court of the Czech Republic in its Resolution of 6 March 1992, sp. zn. 2 Tz 21 / 92, published under No 57 of the Reports of Judgments and Opinions, 1992, which concluded that the decision on the extension of the detention was not a decision on detention and therefore no complaint against it was admissible:
"The decision on the prosecutor's proposal to extend the term of custody means the decision to extend the term of custody or the decision not to extend the term of custody, or the prosecutor's proposal to extend the term of custody. The two methods of making the decision provided for in Article 67 (3) and, to that effect, the existence of the grounds for the binding is not a criterion on which the decision on the prosecutor's proposal would be dependent. This criterion is only that the release of the accused by reason of the expiry of the legal period for which the binding is admissible could be thwarted or made difficult to achieve the purpose of criminal proceedings.
It should be added that the prosecutor's proposal to extend custody is not a proposal to examine the grounds for detention. If, in carrying out the official duty referred to in the first sentence of Paragraph 72 (1) (a), the court finds that the grounds for the detention do not exist, it shall again, on the basis of the official obligation laid down in the third sentence of Paragraph 72 (1) (a) and not on the initiative of the prosecutor in order to extend the detention. In such a case, it no longer gives a decision that the link is not extended.
It is clear from the above that the decision of the court on the application of the prosecutor to extend the custody pursuant to Article 71 (1) (b), as amended by Act No 558 / 1991 Coll., is not a decision on detention within the meaning of Article 74 (1) (d) (ii) of the Rules of Procedure.
The amendment to the Code of Criminal Procedure thus explicitly expressed the interpretative conclusions of the case-law in the new Decree of Paragraph 74 (1).
These conclusions are based on a deduction according to which examination of the grounds for detention is only a necessary condition for the decision to extend the detention, but not a sufficient condition: that is to say, the assessment of "whether the release of the accused by reason of the expiry of the legal period for which the detention is admissible could be undermined or made more difficult to achieve the purpose of criminal proceedings'. The question is whether it can be concluded at all that the purpose of criminal proceedings could no longer be thwarted or made difficult to achieve. In other words, whether it is compatible with the conclusion that there are at the same time grounds for detention, and at the same time there is no longer any fear of thwarting or making it difficult to achieve the purpose of criminal proceedings.
The content of the legal institution of custody is the definition of constitutionally acceptable reasons for restricting personal freedom (after the communication of the indictment - § 68, 160 of the Code of Criminal Procedure) with a view to making it impossible to thwart or make it difficult to achieve the purpose of criminal proceedings. It follows that the allegation of the compatibility of the present existence of detention grounds and of the absence of a fear of thwarting or making it difficult to achieve the purpose of criminal proceedings constitutes a contravention.
The purpose of criminal proceedings is not only a "fair punishment of the perpetrator," but also a "fair" process. The existence of a proper process is an inevitable condition of the existence of a democratic rule of law.
Therefore, the legal period defining the duration of the detention should be considered as a period of the necessary limitation of the personal freedom of the defendant (or defendant), for which the presumption of innocence applies, to the authorities involved in the criminal proceedings for the termination of the proceedings. It follows that, when deciding to extend the link, other than the existence of a legal detention ground, it is necessary to demonstrate serious reasons which have made it impossible to close the proceedings within the time limit.
Deciding on the extension of the custody (i.e. further restrictions on the personal freedom of a person against whom criminal proceedings are being conducted and to whom the presumption of innocence has to be viewed) is therefore a decision to which higher requirements must be imposed than the decision on custody. Therefore, for such decisions, from the point of view of the principle of equality, everything that applies to decisions on detention itself, including the right to review, must apply.
In applying Article 5 (4) of the Convention on the Protection of Human Rights and Fundamental Freedoms, the European Court of Human Rights repeatedly stressed the right of the person concerned to review the decision on detention.
In this context, it is also necessary to address any question as to whether the authorisation to request an examination of the relevance of the link cannot be considered as a review of the decision to extend the link. The negative response and, therefore, the conclusion that there is no possibility of reviewing the decision to extend the link by submitting a request for an examination of the merits of the link can be seen as referring to a different subject-matter. The examination of the decision to extend the detention period, in the absence of grounds for detention, may be justified by the absence of serious reasons for which the proceedings could not be terminated within the previous detention period.
It follows that Paragraph 74 (1) of the Code of Criminal Procedure, as amended by Act No. 292 / 1993 Coll., excludes the possibility of reviewing a decision on detention, which must also be regarded as a decision on its extension, contrary to Article 5 (4) of the Convention on the Protection of Human Rights and Fundamental Freedoms.
The consequence of the annulment of part of the provision of § 74 (1) of the Code of Criminal Procedure, as amended by Act No. 292 / 1993 Coll., and therefore the abrogation of the exception limiting the lodging of a complaint against a decision to extend the term of custody, is the absence of a decision-making mechanism in cases where the extension of the term of custody pursuant to § 71 (3) of the Code is decided by the Supreme Court. In order to give the legislature time to supplement that mechanism, as in the case of the annulment of Sections 55 (2) and 209 of the Code of Criminal Procedure, as amended by Act No. 292 / 1993 Coll., the Constitutional Court of the Czech Republic also decided, in the event of the annulment of part of the provision of Section 74 (1) of the Code of Criminal Procedure, as amended by Act No. 292 / 1993 Coll., to postpone the effective date of the finding to 1 March 1995.
President of the Constitutional Court of the Czech Republic:
JUDr. Kessler v. r.
The right to attach a different opinion with its name on the decision on the application for annulment of the provision of § 55 paragraph 2 and part of the provision of § 209 of the contested law has been used by the President of the Constitutional Court under the provisions of § 14 of Act No. 182 / 1993 Coll., Judge JUDr. Ivan Janů.
Sign in for notes, favorites and notifications
Regulation Information
| Citation | Findings of the Constitutional Court of the Czech Republic No. 214 / 1994 Coll., on the application for annulment of the provisions of § 55 paragraph 2, the provision expressed in § 74 paragraph 1 in the words "(§ 68, 69, 72, 73, 73a), with the exception of the decision on its extension (§ 71 paragraph 2, 5)," and § 209 of Act No. 141 / 1961 Coll., on criminal proceedings (criminal order), as amended |
|---|---|
| Regulation Type | The Constitutional Tribunal found |
| Author | - |
| Collection | Code of Laws |
| Date of Promulgation | 18.11.1994 |
|---|---|
| Effective from | - |
| Effective until | - |
| Status | Valid |
The regulation text is for informational purposes only.
Comments 0